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A narrow-tailoring victory in Fisher v. University of Texas at Austin

When Abigail Fisher was not offered admission to the University of Texas at Austin she brought an Equal Protection challenge against the school for its use of race in the admissions process. As readers of this blog know, PLF has been involved in the Fisher case for years, submitting briefs in the Fifth Circuit stage, the cert petition stage, and most recently at the Supreme Court merits stage. Now we’ve had a chance to analyze the Court’s opinion in Fisher. In short, the Supreme Court reversed the Fifth Circuit’s previous decision and remanded the case back to that court so that the federal appellate court could apply strict scrutiny rigorously, and correctly. Justice Kennedy wrote the majority decision, Scalia and Thomas concurred, and Ginsburg dissented.

Though Justice Kennedy’s opinion does not tackle a number of the issues we hoped the Court would address (such as overruling the infamous Grutter v. Bollinger decision and public universities’ use of diversity as a compelling state interest) the decision was still a victory. When the government discriminates based on racial classifications, courts must apply strict scrutiny to those actions. Strict scrutiny requires that a government entity have some compelling interest and the governments’ means must be narrowly tailored to achieve that interest. Kennedy explained that when courts analyze the narrow tailoring prong of their analysis, they must verify that it is “necessary” for a university to use race to achieve the educational benefits of diversity. Kennedy wrote the “reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.” In other words, Kennedy’s opinion minimized the opportunity for government entities to bypass the rigors of strict scrutiny and receive judicial deference anytime they try to institute race-conscious preference programs. He wrote “strict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.” The opinion didn’t give us everything on our wish list, but Kennedy’s reinforcement of strict scrutiny’s requirements is a very good thing.

Scalia’s concurrence is brief. He explains that he adheres to the view he expressed in Grutter: “The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception.” Yet, he joined the majority’s decision because the petitioner didn’t ask the Court to overrule Grutter’s holding that a “compelling interest” in the educational benefits of diversity can justify racial preferences in university admissions. This bodes well for the next case in the racial preference pipeline.

Then comes Justice Thomas’s 20-page, spot-on concurrence. Thomas wrote separately to explain that he would overrule Grutter and hold that a “state’s use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause.” In Grutter, the University of Michigan Law School claimed it had a compelling reason to discriminate based on race. As Justice Thomas explains, that school’s reason “did not deal with national security or remedying its own past discrimination, instead it said it must discriminate to obtain the ‘educational benefits that flow from a diverse student body.’” As we argued in our brief, Grutter should be overturned. Many lower courts and educational institutions have misread Grutter, wrongly viewing it as blanket permission to discriminate based on race.

Then Thomas points out that there’s nothing “pressing” or “necessary” about “obtaining whatever educational benefits may flow from racial diversity,” yet the Court deferred to the school in that instance. Thomas explained that purported benefits do not amount to a “compelling state interest.” He powerfully argues that the Court rejected the 1950s era segregationists’ idea that “educational benefits” justified racial discrimination and he asserts that similar arguments cannot justify racial discrimination today. Thomas argues that “[a]ll applicants must be treated equally under the law, and no benefit in the eye of the beholder can justify racial discrimination.” He ends by pointing out some of the serious costs that racial preference programs impose on students, including minorities.

So though this isn’t the sweeping victory we’d hoped for since the fall, the majority opinion strengthens strict scrutiny and the University of Texas at Austin is going to have a very tough time meeting the reinforced standard when Fisher returns to the Fifth Circuit.